The New York Supplement

Right of owners of land to an award, where
their property, subject to right of way, is taken
by a city for a street, determined.-In re Open-
ing of Edgecomb Road (Sup.) 1073.

§ 2. Proceedings to take property and
assess compensation.
Commissioners of estimate and assessment
should not determine questions of title, and
where title is litigated an award to unknown
heirs is proper.-In re Opening of Fulton Ave.
(Sup.) 37.

Where title to a lot condemned is in doubt,
the commissioners properly made the award
to unknown owners. In re Armory Board
(Sup.) 37.

Sunday must be included in computation of
time for filing objections to report of commis-
sioners of estimate.-In re Armory Board (Sup.)

37.

Award of commissioners of estimate will not
be reviewed, unless grossly excessive or in-
adequate. In re Armory Board (Sup.) 37.
Petition in condemnation of land for public
park held insufficient to show the necessity of
the proceedings.-In re Meagher (Sup.) 157.

Laws 1899, c. 652, providing for acquiring
lands by condemnation by the East River
Bridge Commission, held not unconstitutional
as not providing for payment of compensation.
-Connolly v. Van Wyck (Sup.) 382.

3. Remedies of owners of property.
Where a telephone company is maintaining
its poles over the land of another without au-
thority, the landowner may maintain an action
to eject such company and to restrain it froni
the further use and occupation of the premises.
-Andrews v. Delhi & S. Tel. Co. (Sup.) 50.

A plaintiff held entitled to a preliminary in-
junction, in a suit to enjoin the use by a rail-
road of public grounds, so far as to restrain
the laying of new tracks thereon pending the
action. Diocese of Buffalo v. New York Cent.
& H. R. R. Co. (Sup.) 671.

EMPLOYES.

See "Master and Servant."

EQUITY.

Equitable conversion, see "Conversion."
Particular subjects of equitable jurisdiction and
equitable remedies.

See "Account"; "Fraudulent Conveyances";
"Injunction": "Interpleader"; "Partition,"

By admissions at trial, see "Trial," § 3.
Of grantee of property abutting on line of
By judgment, see "Judgment," § 5.
street railroad by consent of grantor, see
"Street Railroads," § 1.

Of street railroad to claim consent of sufficient
number of property owners to establishment
of road, see "Street Railroads," § 1.

Of tenant to dispute title of landlord, see
"Landlord and Tenant." § 2.

Of wife to assert invalidity of lease, see "Hus-
band and Wife," § 3.

To object to assessment for municipal improve-
ment, see "Municipal Corporations," § 10.
To take appeal, see "Appeal," § 3.

EVIDENCE.

See "Depositions"; "Discovery"; "Witnesses."
Admissibility of evidence under pleading, see
"Pleading," § 7.

Reception at trial, see "Trial," § 3.
Review on appeal, see "Appeal," § 8.

As to particular facts or issues.
See "Damages," § 4; "Death." § 1; "Fraud-
ulent Conveyances," § 1; "Gifts," § 1.
Agency, see "Principal and Agent," 88 1, 3.
Authority of agent, see "Principal and Agent,"
§ 3.

Consent of property owners to laying out street
railroad, see "Street Railroads," § 1.
Issue as to who is party in interest, see "Par
ties," § 1.

and 106 New York State Reporter

Suretyship, see "Principal and Surety," § 2. Tenancy, see "Landlord and Tenant," § 1. Testamentary capacity, see "Wills," § 2. Undue influence affecting validity of will, see "Wills," § 3.

Value of physician's services, see "Physicians and Surgeons."

In actions by or against particular classes of parties.

See "Carriers," § 1; "Executors and Administrators," § 6; "Insane Persons," § 1; "Railroads," § 3; "Street Railroads," § 1. Agents, see "Principal and Agent," § 2. Sureties, see "Principal and Surety," § 2.

In particular civil actions or proceedings. See "Fraud," § 2.

Action for breach of bond in replevin, see "Replevin," 4.

Actions for causing death, see "Death," & 2. Action for personal injuries, see "Animals." Action for price of goods sold, see "Sales," § 4. Action for specific performance, see "Specific Performance," § 3.

Action on insurance policy, see "Insurance," § 6.

Foreclosure, see "Mortgages," § 2.
Probate proceedings, see "Wills," § 4.
Proceedings to recover possession of demised
premises, see "Landlord and Tenant," § 5.
In criminal prosecutions.
See "Criminal Law," § 4; "Rape," § 1.

1. Presumptions. In an action against a hospital for damages caused by the negligence of a nurse, held, that an instruction as to the effect of failing to call the nurse as a witness was erroneous.-Ward v. St. Vincent's Hospital (Sup.) 587. § 2.

Relevancy, materiality, and competency in general.

In an action for damages on a contract executed by a husband and alleged to be the con

she never had any children are admissible. -Washington v. Bank for Savings in City of New York (Sup.) 752.

In a suit to dissolve a corporation, an objec that the corporation's books are the best evition to a question as to its profits, on the ground dence, held untenable.-In re Dittman (Sup.) 886.

On an issue as to the validity of an alleged gift causa mortis, evidence that shortly prior to the transaction the donor had told witnesses that she did not expect to live long, and that she wanted the donee to have everything out of doors and in the house, was competent.-In re Swade (Sup.) 1030.

ing writings.

franchise to construct a road across a bay was granted, and when the work was completed, held admissible in a suit to enjoin the holder of the franchise from filling in the bay.-Trustees of Freeholders and Commonalty of Town of Southampton v. Jessup (Sup.) 312, 780.

Oral evidence as to what was said when a

8. Opinion evidence.

Testimony of a physician as to whether certain results followed from injuries held competent.-Jarvis v. Metropolitan St. Ry. Co. (Sup.) 829.

EXAMINATION.

Of adverse party before trial, see "Discov ery," 1.

EXCEPTIONS.

tract of the wife, evidence that he had acted To report of referee, see "Reference," § 3. as her agent in former like transactions was inadmissible.-Molt v. Baumann (Sup.) 832.

EXCEPTIONS, BILL OF.

As sufficient record on application for new trial, see "New Trial," § 3. Necessity for purpose of review, see "Appeal," § 3.

EXCESSIVE DAMAGES.

See "Damages," § 3; "Death," § 2.

EXCISE.

Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors."

EXECUTION.

See "Attachment"; "Garnishment."
Exemptions, see "Exemptions."

1. Supplementary proceedings. Under Code Civ. Proc. §§ 2464, 2432, the appointment of a receiver in supplementary pro

ceedings held not to discontinue the proceed- dismissable by virtue of such section.-O'Brien
ings. Smith v. Cutter (Sup.) 99.
v. Baker (Sup.) 1001.

Affidavit in supplementary proceedings for
examination of third person held defective.-
Smith v. Cutter (Sup.) 99.

Receiver in supplementary proceedings held

to take title to the assets in hands of debtor at
commencement of supplementary proceedings,
as against judgment creditors obtaining judg
ment after his appointment.-Droege v. Baxter
(Sup.) 1045.

§ 3. Allowance and payment of claims.
That an administrator pleads an independent
demand as a counterclaim on a reference, and
thereby reduces the recovery of the claimant be-
to costs.-Osborne v. Parker (Sup.) 894.

Property claimed by a stranger can be recov-low $50, does not affect the right of the latter
ered by a receiver in an action therefor.-
Brein v. Light (City Ct. N. Y.) 655.

§ 2. Execution against the person.
An execution issued on a judgment for serv-
ices, commanding the confinement of defendant
until he pay the judgment or is discharged ac-
cording to law, does not conflict with Code Civ.
Proc. 3221.-Padreshefsky v. Walton (Sup.)
979.

Where a prisoner has been confined 15 days
under an execution issued under Code Civ. Proc.
3221, it is the duty of the sheriff to discharge
him without any order or proceedings on the
part of the debtor.-Padreshefsky v. Walton
(Sup.) 979.

An order of a referee allowing disbursements
of the reference to a claimant against an estate
is not void, and can only be reviewed for error
on an appeal.-Osborne v. Parker (Sup.) 894.

The purpose of the statutory provision requir-
ing a claimant against an estate to make affida-
vit that no payments have been made thereon
and that there are no offsets to his knowledge
is not to fix the amount of the claim for juris-
dictional purposes.-Osborne v. Parker (Sup.)
894.

On allowance by surrogate of disputed claim
against decedent's estate, the allowance of costs
is in his discretion.-In re Ingraham's Estate
(Sur.) 62.

EXECUTORS AND ADMINISTRATORS. allowance of a claim results in reducing it 75

Executor held under no fiduciary obligation
preventing him from purchasing land devised by
will from his coexecutor, who is also sole devi-
see.-Hurrell v. Hurrell (Sup.) 902.

Will held not to charge debts on real estate,
and hence not to enable executors to give good
title as against creditors of deceased.-Parker v.
Beer (Sup.) 955.

A petition filed under Code Civ. Proc. § 2709,
by an administrator for the examination of a
person holding assets of the estate, held not

Where resistance of an administrator to the
per cent., the claimant is not entitled to costs.-
In re Ingraham's Estate (Sur.) 62.

§ 4. Distribution of estate.

Code, 2743, as amended in 1898 (Laws
1898, c. 565), held to apply only to administra-
tors of intestate estates.-In re Lawson (Sur.)
645.

§ 5. Sales and conveyances under order
of court.

Petition to sell land to pay debts of decedent
need not state the value of each parcel.-In re
Georgi's Estate (Sur.) 431.

Agreement on sale of real property of de-
cedent subject to a mortgage to pay his debts,
between the parties, held valid.-In re Georgi's
Estate (Sur.) 431.

§ 6. Actions.

Evidence in an action by an administrator to
recover assets held sufficient to justify the jury
in finding that an intestate never had children.
New York (Sup.) 752.
-Washington v. Bank for Savings in City of

§ 7. Accounting and settlement.

Surrogates adjudication against administra-
trix's personal claim to assets held conclusive
on her in subsequent proceeding in supreme
court.-Sexton v. Sexton (Sup.) 213.

Under Code Civ. Proc. § 2739, surrogate's
court held to have jurisdiction of administra-
trix's personal claim to assets, as against oth-
er heirs. Sexton v. Sexton (Sup.) 213.

Under Code Civ. Proc. §§ 2728, 2730, an ex-
ecutor held entitled to testify to expenses paid
by him in the administration of an
though the account filed with the petition for

estate.

and 106 New York State Reporter

settlement did not contain such items.-In re Brandreth's Estate (Sup.) 333; Appeal of Kane, Id.

The remedy of an heir, not brought in on proceedings for final settlement and accounting by the administrator, is by motion to reopen the accounting and decree thereon, and not by petition for an accounting de novo.In re Killan's Estate (Sup.) 714.

A prior accounting, ordering an administrator to sell certain assets of the estate at the best figure obtainable, held to conclusively establish the propriety of his acts, and the amount_with which he was chargeable prior thereto.-In re Union Trust Co. of New York (Sup.) 977.

Suit against an executor to compel a further accounting held barred by statute of limitations. In re Smith's Estate (Sup.) 1062.

Under Code Civ. Proc. § 2481, subd. 6, a

EXPLOSIVES.

Pen. Code, § 389, as amended by Laws 1900, c. 494, prohibiting the manufacture of compressed gas in a tenement or dwelling house, or any other article of which such gas forms a component part, is within the police power of the state.-People v. Lichtman (Sup.) 511.

The manufacture of soda water in a tenement house by means of compressed gas is within Pen. Code, § 389, as amended by Laws 1900, c. 494.-People v. Lichtman (Sup.) 511. FACTORS.

See "Brokers."

FEES.

Of referee, see "Reference," § 2.

surrogate can open a decree on an accounting Of attorney, see "Attorney and Client," § 3.

for newly-discovered evidence.-In re Manus (Sur.) 409.

FELLOW SERVANTS.

A decree on accounting by administratrix See "Master and Servant," §§ 3-6. opened for newly-discovered evidence showing why funeral expenses were so large and why note due had not been collected.-In re McManus (Sur.) 409.

Executors held not entitled to judicial settle ment and distribution until one year after letters are granted.-In re Lawson (Sur.) 645.

FINDINGS.

At trial, see "Trial," § 6.
On reference, see "Reference," § 3.

FIRES.

§ 8. Foreign and ancillary administra-Fire departments in cities, see "Municipal Cor

tion.

Savings bank, which paid deposit to nonresident administrator of a deceased depositor, held not excused from liability to a resident administrator.-Maas v. German Sav. Bank (Sup.) 1068.

Failure of the bank to inquire as to whether a resident administrator had been appointed held negligence sufficient to charge it with knowledge of the information which inquiry would have furnished.-Maas v. German Sav. Bank (Sup.) 1068.

EXEMPTIONS.

From taxation, see "Taxation," 8 4.
Liability of constable for sale of exempt prop-
erty under execution, see "Sheriffs and Con-
stables," § 1.

1. Nature and extent.

When a constable wrongfully sells exempt personalty under execution, that the judgment was in part for price of exempt personalty hd no justification.-Grieb v. Northrup (Sup.) 481. 2.

Protection and enforcement of
rights.

porations," 8 4.

FIXTURES.

Mantel, gas grate, and necessary fixtures held to be attached to the realty in such a manner ers (Sup.) 597. as to become a part thereof.-Andrews v. Pow

Fixtures attached to premises by vendee held a part of the realty, on his default and a retaking of possession by the vendor, though title was not to pass until paid for.-Andrews v. Powers (Sup.) 597.

The trustee of a bankrupt tenant held to have abandoned the right to remove trade fixtures by taking a new lease of the property.Van Vleck v. White (Sup.) 1026.

FOOD.

In action to recover for violation of section 22 of the agricultural law, prohibiting the sale of adulterated cream, evidence_held sufficient to sustain verdict for plaintiff.-People v. Hills (Sup.) 340.

FORCIBLE DEFILEMENT.

When a constable sells under execution all the personal property of a debtor, that the latter does not claim his exemption is no waiver See "Rape." thereof.-Grieb v. Northrup (Sup.) 481.

EXPERT TESTIMONY.

In civil actions, see "Evidence," § 8.

FORECLOSURE.

Of lien, see "Mechanics' Liens," § 3.

Of mortgage, see "Mortgages," § 2; "Railroads," § 2.

FOREIGN ADMINISTRATION.

See "Executors and Administrators," § 8.

FOREIGN CORPORATIONS.

See "Corporations," § 9.

Insurance companies, see "Insurance," § 7.

FOREIGN JUDGMENTS.

See "Judgment," §§ 6, 7.

FORFEITURES.

Of attorney's lien, see "Attorney and Client,"
§ 3.

Of insurance, see "Insurance." §§ 4, 7.

FORMER ADJUDICATION.

See "Judgment," § 5.

FORMS OF ACTION.

See "Replevin”; “Trover and Conversion."

FRAUD.

See "Fraudulent Conveyances."

1. Proceedings to support or enforce.
Deception constituting fraud, and
Averments of plaintiff in attachment, though
liability therefor.
on information and belief, held sufficient, to-
Statement of a party to a contract as together with the circumstances, to entitle him
his judgment of the situation requiring the
execution of the contract held not to constitute
actionable fraud.-Leszynsky v. Ross (Sup.)
352.

2. Actions.

Exclusion of lease from third person to plain-
tiff, under which she had been paying rent,
held error in action for fraudulently inducing
plaintiff to purchase real estate, in view of ap-
pellate court's presumption.-Grosjean v. Gal-
loway (Sup.) 331.

In an action for deceit, evidence held suffi-
cient to submit to the jury the questions of
falsity of the representation, the defendant's
knowledge, and the reliance of the plaintiffs
thereon.-Grosjean v. Galloway (Sup.) 331.

Evidence as to the measure of damages held
improperly excluded in an action for deceit, in
view of presumption indulged in on appeal.-
Grosjean v. Galloway (Sup.) 331.

FRAUDS, STATUTE OF.

1. Promises to answer for debt, de-
fault, or miscarriage of another.
An agreement, on plaintiff's purchase of
stock, that if a dividend was not paid by the
corporation it would be paid by the directors,
held not within the statute of frauds as an
agreement to answer for the debt of another.-
Crook v. Scott (Sup.) 516.

to examination of third party under Code Civ.
Proc. § 651.-Stine v. Greene (Sup.) 729.

Where, in attachment, a third party refuses
to give the certificate required by Code Civ.
Proc. § 650, and the attachment plaintiff claims
tiff is entitled to an examination of such party
such party to hold property of defendant, plain-
under section 651.-Stine v. Greene (Sup.) 729.

Examination of third party in attachment
under Code Civ. Proc. § 651, held necessarily
limited to property within the jurisdiction; de-
fendant being a nonresident.-Stine v. Greene
(Sup.) 729.
GAS.

See "Explosives."

GIFTS.

§ 1. Causa mortis.

Acts held to show sufficient delivery of deeds,
bonds, etc., constituting a gift causa mortis.-
In re Swade (Sup.) 1030.

A gift by a donor during his last sickness is
presumed to be made causa mortis.-In re
Swade (Sup.) 1030.

Evidence that donor, in delivering a package
of papers to donee, who claimed them as a
gift causa mortis, said that "these are my
valuable papers, bonds, mortgages, notes, and
bank book,' was prima facie evidence of the

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